Opinion
March, 1924.
Charles J. Holland, for appellant.
Kalish Kalish ( Theodore J. Miller, of counsel), for respondent.
The court below found on the evidence that the defendant was liable as a warehouseman, if at all, and we agree with this finding. The judgment, however, must be reversed as against the weight of evidence. The case of cigars which was shipped to the plaintiff by the defendant's boat duly arrived in New York and was placed by the carrier on the pier about sixty feet from the entrance thereof, on a board about one inch from the floor. The defendant knew that the case contained cigars. The storm which occurred the night before the plaintiff called for the goods was not such an unusual storm as to bring it within the definition of an act of God. The conduct of the employees of the defendant in failing to properly protect perishable goods of this kind while on the pier, from the water and mud washed in on the pier during the storm, is negligence. The defendant had a watchman on the pier during the storm, and he neither closed the entrance doors through which the mud and water flowed, nor did anything toward moving the case from the obvious danger of the approaching water.
The amount of damages is not disputed. Judgment is, therefore, reversed, with $30 costs, and judgment directed for the plaintiff in the sum of $158.75, with interest thereon from June 22, 1920, and appropriate costs in the court below.
All concur; present, BIJUR, MULLAN and LYDON, JJ.
Judgment reversed.